Citation Nr: 18147668 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 13-21 844A DATE: November 5, 2018 ORDER Entitlement to a compensable initial disability rating for allergic rhinitis (claimed as sinusitis) is denied. Entitlement to a compensable disability rating for hypertension prior to December 21, 2015, and a staged initial rating greater than 20 percent for the period from December 21, 2015 through the present, is denied. FINDINGS OF FACT 1. Since the initial grant of service connection, the Veteran’s allergic rhinitis has not been manifested by complete obstruction of one side of the nose, nor greater than 50-percent obstruction of both nasal passages. 2. The Veteran’s hypertension did not, prior to December 21, 2015, manifest diastolic pressure that was predominantly 100 or more, nor systolic pressure that was predominantly 160 or more. 3. The Veteran’s hypertension did not, during the period of December 21, 2015 through the present, manifest diastolic pressure that was predominantly 120 or more. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable initial disability rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.31, 4.97, Diagnostic Code 6522. 2. The criteria for entitlement to a compensable disability rating for hypertension prior to December 21, 2015, and a staged initial rating greater than 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 3, 1978 until October 31, 2000. He retired after over twenty-two years of military service. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that jurisdiction now rests with Winston-Salem, North Carolina RO. Both matters were initially assigned noncompensable service connection ratings. In April 2016, the RO increased the Veteran’s rating for service-connected hypertension to 20 percent, beginning December 21, 2015, in a supplemental statement of the case (SSOC). A claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issue of entitlement to a higher initial disability rating for hypertension remains in appellate status. The Veteran was scheduled for a Travel Board hearing in March 2015. The Veteran’s hearing request is deemed withdrawn as he failed to appear for the scheduled hearing or provide communication regarding such failure to appear. 38 C.F.R. § 20.704. 1. Entitlement to a compensable initial disability rating for allergic rhinitis is denied. The Veteran contends that a compensable initial rating is warranted for allergic rhinitis. Under Diagnostic Code 6522, allergic or vasomotor rhinitis warrants a 10 percent rating where there are no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6522. A maximum 30 percent rating is for application when there are polyps. Id. In March 2011, the Veteran underwent a Compensation and Pension Examination. He complained of interference with breathing through the nose, headaches, and hoarseness of voice, as well as purulent discharge and pain. He reported that his sinus problems were “constant” and that he experienced twelve non-incapacitating episodes per year which he denied needing antibiotic treatment for. On examination, it was noted that there was no nasal obstruction, no deviated septum, no partial loss of the nose, no partial loss of the ala, no nasal polyps, no scar, no disfigurement, no sinusitis and no rhinitis. In December 2015, the Veteran underwent another Compensation and Pension Examination. The Veteran reported a history of allergic rhinitis, which had continued since service. He stated that he had had four non-incapacitating episodes in the last year characterized by headaches, pain, and purulent discharge, but denied any periods of incapacitation. He noted that his symptoms occur year-round and that he uses Fluticasone nasal spray daily but had not had surgery, nor repeated sinus-related surgical procedures. Physical examination showed permanent hypertrophy of the nasal turbinates with no septal deviation, tissue loss, scarring, or deformity of the nose. There was no evidence of granulomatous disease, including rhinoscleroma. There was no evidence of bacterial rhinitis. It was further noted that neither the left nor right nasal passage was completely obstructed, nor was there greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. Based upon review of the evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for his service-connected allergic rhinitis. The evidence of record fails to demonstrate allergic rhinitis with either greater than 50 percent obstruction of the nasal passage on both sides or with complete obstruction on one side. Neither the examination in June 2011 nor the examination in December 2015 documented any evidence of a 50 percent obstruction of the nasal passage on both sides nor a complete obstruction on one side. Despite the Veteran’s complaints, the treatment records and VA examinations of record do not reflect symptomatology meeting the rating criteria for a 10 percent rating pursuant to Diagnostic Code 6522. As such, a compensable rating for allergic rhinitis must be denied. The Board acknowledges that the Veteran has rhinitis symptoms. Unfortunately, these symptoms do not warrant a compensable evaluation under the schedular rating code because the Veteran has not been diagnosed with polyps and his rhinitis is not manifested by greater than 50 percent nasal obstruction on both sides, or complete obstruction on one side. In addition, evidence of record during the entire appeal period does not reflect that the Veteran has lost part of his nose, or has nasal scarring (Diagnostic Code 6504); has been diagnosed with a deviated nasal septum (Diagnostic Code 6502); has had radical or repeated surgeries or incapacitating episodes (Diagnostic Codes 6510-6514); suffers laryngitis or has undergone a laryngectomy (Diagnostic Codes 6515 to 6518); has complete organic aphonia (Diagnostic Code 6519), has stenosis of the larynx (Diagnostic Code 6520), has injuries to the pharynx (Diagnostic Code 6521); and/or has bacterial or granulomatous rhinitis (Diagnostic Codes 6523 and 6524). Thus, the assignment of any separate or increased evaluation under any of these diagnostic codes is not warranted. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for allergic rhinitis, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a compensable disability rating for hypertension prior to December 21, 2015, and a staged initial rating greater than 20 percent thereafter is denied. The Veteran seeks entitlement to a compensable disability rating for hypertension for the period prior to December 21, 2015, and a staged initial rating more than 20 percent for hypertension thereafter through the present. The Veteran has asserted that he was diagnosed with service-connected hypertension after experiencing blurred vision, headaches, and disorientation because his “blood pressure would be so high”. See VA Form 9. The Veteran’s hypertension is rated as 20 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. Finally, a maximum 60 percent rating is warranted when there are diastolic pressure readings that are predominantly 130 or more. For a non-initial increased rating claim, the effective date is the date at which an increase is “factually ascertainable,” up to 1 year prior to date of claim. In this case, the earliest date at which such an increase is factually ascertainable is March 21, 2010, the date of the Veteran’s 21-526, Application for Compensation and/or Pension. Therefore, the period for the Veteran’s compensable disability evaluation is March 21, 2010 through December 21, 2015. After a thorough review of the evidence of record, the Board concludes that a compensable disability evaluation is not warranted for the Veteran’s service-connected hypertension prior to December 21, 2015. At a June 2010 Compensation and Pension Examination, the Veteran’s blood pressure readings included diastolic pressures that were predominately below 100, and systolic pressures that were predominantly below 160. Specifically, the Veteran’s three blood pressure readings were 112/75, 117/74, and 104/58. The records from the Veteran’s primary care provider similarly reflect that, during this period, his systolic pressure was not 160 or more and that his diastolic pressure was not 100 or more as ascertained from the blood pressure readings that were documented during each visit. For example, the Veteran’s February 2012 reading was 120/88, November 2012 reading was 122/84, and March 2013 reading was 111/73. The evidence on record indicates that throughout this period, the Veteran’s systolic pressure was not predominately 160 or more and that his diastolic pressure was not predominantly 100 or more. Accordingly, a compensable evaluation is not warranted for hypertension for the period prior to December 21, 2015. The Board has contemplated the Veteran’s assertions in his October 2015 lay statement and June 2016 VA Form 9 that he “lost [a] 10 % rating that [he] was receiving”. The Board can find no evidence that the Veteran ever had a 10 percent rating for hypertension, nor that any of his service-connected disability ratings have ever been reduced. Although he was previously assigned a 10 percent rating under 38 C.F.R. 3.324 to reflect the impairment attributable to multiple noncompensable disabilities, such a rating automatically is terminated once a Veteran receives a compensable rating for a single service-connected disability, as occurred in this case when the Veteran was assigned a compensable rating for his service-connected back disorder. The previous existence of a rating assigned under 38 C.F.R. 3.324 in no way indicates that the criteria for a compensable rating for hypertension were ever met in the past. Based on the foregoing, the evidence does not demonstrate that the Veteran’s service-connected hypertension warrants a compensable disability rating for the period prior to December 21, 2015. Further, the evidence does not show that a staged initial rating greater than 20 percent is warranted from December 21, 2015 to the present. In December 2015, the Veteran underwent a Compensation and Pension Examination. The examination yielded three blood pressure readings which were 171/113, 181/117, and 172/115. Thus, the Veteran’s average diastolic blood pressure reading was 115, but none of the readings were representative of the 120 that would need to be demonstrated to warrant an increase to a 40 percent rating. It was also noted that the Veteran reported systolic pressure readings ranging from only the 130s to the mid-140s, and diastolic pressure ranging from only the mid-90s to the mid-110s. Accordingly, as the evidence of record from December 21, 2015 does not show diastolic pressure predominantly 120 or more, a staged initial rating greater than 20 percent is not warranted for hypertension from December 21, 2015 to the present. 38 C.F.R. § 4.104, Diagnostic Code 7101. (Continued on the next page)   Based on the foregoing, a compensable disability evaluation for the Veteran’s service-connected hypertension prior to December 21, 2015, and a staged initial rating greater than 20 percent for hypertension from December 21, 2015 is not warranted. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. See 38 C.F.R. § 5107 (b); Gilbert, 1 Vet. App. 49. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk